- Once a court finds that one partner was unjustly enriched at the other's expense, it has to decide how to fix that unfairness.
- A monetary award is the more common outcome.
- A constructive trust is a different kind of remedy — it doesn't just compensate the claimant, it recognizes them as a partial owner of a specific property, most often a home.
When an unmarried couple separates in Ontario and one partner has a successful unjust enrichment claim, the next question is just as important as winning the claim itself: what does the court actually order? There are two main possibilities — a monetary award, or a constructive trust giving the claimant an ownership interest in specific property. They can lead to very different outcomes, especially when property values have changed since separation.
Understanding the difference helps you set realistic expectations about what a successful claim might actually get you.
Two Ways a Court Can Remedy Unjust Enrichment
Once a court finds that one partner was unjustly enriched at the other's expense, it has to decide how to fix that unfairness. Broadly, it has two tools:
- A personal remedy — a monetary award requiring one partner to pay the other a sum of money
- A proprietary remedy — a constructive trust, declaring that the claimant holds a beneficial ownership interest in a specific piece of property, regardless of whose name is on title
Both remedies flow from the same underlying finding of unjust enrichment. The difference is in what you actually walk away with.
Monetary Award: The Default Remedy
A monetary award is the more common outcome. The court calculates a dollar figure meant to compensate the claimant — either for the value of what they contributed (a "value received" approach) or for a proportionate share of accumulated wealth where the relationship functioned as a joint family venture (a "value survived" approach).
A monetary award is generally preferred when:
- The contribution can reasonably be valued in dollars
- The other partner has the ability to pay without selling or refinancing the property in question
- There isn't a strong enough link between the claimant's contribution and one specific asset
Constructive Trust: An Ownership Interest Instead of Cash
A constructive trust is a different kind of remedy — it doesn't just compensate the claimant, it recognizes them as a partial owner of a specific property, most often a home. This matters because it lets the claimant share directly in that property's value, including any appreciation after separation, rather than being limited to whatever dollar figure a court calculated as of the separation date.
Courts generally reserve a constructive trust for situations where:
- There's a clear and direct link between the claimant's contribution and the specific property
- A monetary award wouldn't adequately capture the fairness of the situation — for example, where the property has grown significantly in value
- The other partner may not have the funds to satisfy a monetary award without dealing with that property anyway
When Courts Choose One Over the Other
Courts weigh several considerations when deciding between the two remedies:
- Traceability — can the contribution be linked directly to a specific asset, or was it more general (unpaid household labour, general household expenses)?
- Fairness of a dollar figure — would a monetary award undervalue the claimant's real stake, particularly where the asset has appreciated?
- Practicality — does the paying partner actually have the money to satisfy a monetary award, or would enforcement realistically require dealing with the property anyway?
- Proportionality — is the contribution significant enough to justify an ownership interest, rather than compensation?
Side-by-Side Comparison
| Monetary award | Constructive trust | |
|---|---|---|
| What you receive | A sum of money | A declared ownership percentage in specific property |
| Shares in future appreciation? | No — fixed as of the relevant date | Yes — value moves with the property |
| Best suited to | Contributions valued in dollars, general household support | Contributions directly linked to a specific asset |
| Enforcement | Requires the other party to pay | May require a sale or refinancing to realize the interest |
Frequently asked questions
Can I ask for a constructive trust if my name was never on title?
Yes — a constructive trust is specifically designed for situations where legal title doesn't reflect the true contributions behind a property. Not being on title doesn't prevent a claim; it's often the reason the claim exists.
Which remedy is "better"?
Neither is automatically better — it depends on the facts. A constructive trust can be more valuable if the property has appreciated significantly, but a monetary award may be simpler to enforce and doesn't require dealing with a jointly used property.
Can a court award both a monetary payment and a share of a property?
Courts generally choose the remedy that fits the facts of the case rather than layering both for the same contribution, but the specific relief awarded depends heavily on the circumstances. This is a question to work through with a lawyer based on your facts.
Does it matter if the property was purchased before the relationship started?
It can. Contributions made during the relationship toward a property one partner already owned can still support a claim, but the analysis is more nuanced than for property acquired jointly during the relationship.
This is a family law question
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